{ "id": 1449832, "name": "Dinwiddie v. State", "name_abbreviation": "Dinwiddie v. State", "decision_date": "1941-05-26", "docket_number": "4202", "first_page": "562", "last_page": "571", "citations": [ { "type": "official", "cite": "202 Ark. 562" }, { "type": "parallel", "cite": "151 S.W.2d 93" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "63 S. W. 356", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "69 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720839 ], "opinion_index": 0, "case_paths": [ "/ark/69/0177-01" ] }, { "cite": "197 Ark. 695", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723228 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0695-01" ] }, { "cite": "200 Ark. 973", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1453454 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/200/0973-01" ] }, { "cite": "170 S. W. 582", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "114 Ark. 472", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1536285 ], "opinion_index": 0, "case_paths": [ "/ark/114/0472-01" ] }, { "cite": "188 S. W. 805", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "125 Ark. 267", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1553203 ], "opinion_index": 0, "case_paths": [ "/ark/125/0267-01" ] } ], "analysis": { "cardinality": 898, "char_count": 17120, "ocr_confidence": 0.52, "pagerank": { "raw": 1.430121444946368e-07, "percentile": 0.6511290812707613 }, "sha256": "71946548da36d11627f489f0f05948ebd329b2d33dfa2ac2c5077c6ccd5809f9", "simhash": "1:77a5e82d7ec6d348", "word_count": 2997 }, "last_updated": "2023-07-14T17:41:33.899118+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dinwiddie v. State." ], "opinions": [ { "text": "Grieein Smith, C. J.\nS. E. Davis was nightwatchman for Critz Chevrolet Company, North Little Eock. Parts of the property under Davis\u2019 observation were two lots used for displaying second-hand cars.\nDuring the night of September 4-5, 1940, Davis was killed. Dr. H. A. Dishongh, coroner, who examined the corpse about seven o\u2019clock in the morning, September 5, thought death had occurred several hours earlier. The skull had been penetrated in two places. The holes were separated by a narrow strip of the bone structure. Indications were that the wounds had been made with a blunt instrument \u2014 \u201ca sledge hammer, or a bigger object than a.pistol.\u201d The body was found near the middle of one of the lots. There were cars on either side. To the south was a galvanized iron building used as a garage. A chair was nearby. The watchman\u2019s pistol was on the ground near the body. An officer testified the weapon contained two discharged shells; that Davis was lying on his right side with his head to the west. One arm was extended. The pistol was within approximately a foot of the dead man\u2019s hand.\nH. A. McClain, filling station operator, was on his way home shortly after eleven o\u2019clock (September 4). He passed the Chevrolet property and saw a white man (presumably Davis) sitting in a chair near the corner of the main brick building. A Negro woman was talking with him. The chair was on the outside of the building, in the street. Through curiosity witness drove his car around the block \u2014 between the building and the used car lot. The woman, whose position had chang*ed, stopped to let the car go by. As witness went by, the watchman flashed his light \u201cdown the side going between the cars.\u201d When witness passed the Negress she ran back of his car \u201cup in the used car lot. \u2019 \u2019\nAt 11:18 or 11:20 officer Jack Morgan saw the defendant going east. He knew her personally and asked where she was going. Appellant replied that she was on her way home.\nS. A. Moss, Critz service manager, testified that the office was usually closed at six o\u2019clock. Davis ordinarily came to work at six. Late in the afternoon four tires were sold for $50, a single bill having been received in payment. It was turned over to Davis to be kept until the following-day. Davis put the bill in his purse. This occurred between six and seven o \u2019clock.\nJoe Loebner, witness for the state, lived about 200 feet from the used car lot. Between 11:30 and 12:00 o\u2019clock, September 4, he heard two shots, but did not know the direction whence the sounds came. On cross-examination the witness testified that the explosions could have been backfires from an automobile, but he did not think they were. The sounds were \u201cright together.\u201d\nChester Dinwiddie, appellant\u2019s brother, testified he was living in North Little Bock upstairs over \u201cPopeye\u2019s\u201d place during September, 1940. At midnight appellant came to the house occupied by witness. His wife, Pear-line, opened the door. Appellant threw some money on the bed and asked that it be counted. It consisted of a fifty dollar bill, three fives, one ten, eleven ones, and seventy-five cents in silver, a total of $86.75. Appellant told witness the babj^ of Esau Dinwiddie (another brother) was sick, and that witness had been sent for. With his wife and appellant, witness walked to a point near the Ben McGehee Hotel and there engaged a taxicab. The parties were taken to Esau\u2019s home near the Lincoln avenue viaduct. The baby was not sick. Witness asked appellant if she intended to return with them, and she replied \u201cno.\u201d Appellant was wearing a white dress. It was torn and revealed a spot of blood. In commenting on the dress the witness said: \u201cIt was so torn up I don\u2019t know whether [the blood] was in the back or front.\u201d Appellant took off the dress, threw it on the floor, and asked witness to put it in the charcoal burner. He refused to do so. There was no fire in the stove, and appellant did not explain why she wanted the dress disposed of. She borrowed a dress from witness\u2019 wife. The torn garment was retained and turned over to the officers. Another brother, Elijah Dinwiddie, and his wife, were also present at Esau\u2019s home. Appellant did not act nervously, nor did she disclose the source of the money, or that Davis had been killed.\nGeorge Looney testified he was staying with Esau Dinwiddie, and that appellant came to the house \u201cpretty late.\u201d Looney was asleep when she came. Appellant spent the night there. The following day appellant, with Esau Dinwiddie and other'members of the family, went to Augusta. The witness (Looney) drove them in his car. He borrowed $15 from appellant for use in making a payment on his car. When the party arrived in Augusta appellant had a fifty dollar bill.\nAnthony Seats, one of appellant\u2019s uncles, lived at Augusta. Appellant, with Esau and others, visited him. It was after four o \u2019clock in the afternoon. Esau and witness attempted to get a man named Nickerson to change the fifty dollar bill. He declined, but Blackwood, next door, sold them five gallons of gasoline and took the bill, making the necessary change. The bill was slightly stained or discolored with what appeared to be blood. It was introduced as an exhibit.\nOfficer J. H. Anderson, of North Little Rock, received the bill from the Conner Motor Company (Ford dealer) of Augusta. The company also operated a service station.\nOn being recalled, Anderson testified he telephoned from Augusta, directing that the Dinwiddies be detained. When he returned appellant had confessed. Twenty dollars of the money taken from Davis had been recovered, other than the fifty dollar bill.\nThe confession, Anderson testified, was voluntary. It was made orally in the city hall in North Little Rock. Chester Dinwiddie was present. He urged appellant to tell the truth. The assistant prosecuting attorney informed the court that appellant \u201clater made a statement to me about it, and that was taken down.\u201d Officers Charles, Campbell, Blankenship and Morgan, participated in the arrests.\nIn her confession appellant implicated George Looney. Anderson testified they took appellant and endeavored, with her help, to locate and identify Looney, whom appellant had described as an ex-convict. They went to state police headquarters \u201cto see if they had a picture and record there.\u201d Anderson was not present at state police headquarters when appellant was again questioned, and when she is alleged to have made a second confession.\nAccording to Anderson, appellant directed the officers to a water tank near the Missouri Pacific bridge, \u201cwhere supposedly they could find the iron she hit Davis with.\u201d\nAt trial, testimony relating to the alleged confession was taken in chambers. Officer Charles testified he arrested appellant just 'before noon. That evening appellant was driven to state police headquarters and questioned in a room used by the officers. She was not taken into the room where there were face masks and machine guns. No attempt was made to question appellant at that time\u2014 \u201cthere was no occasion to do so, because she had already admitted the crime. \u2019 \u2019 The officers were looking for George Looney\u2019s picture.\nAppellant testified that after her arrest she was taken to state police headquarters. This occurred about one o\u2019clock Friday afternoon. She denied having made a confession in North Little Rock, and insisted that the officers began hitting her. At state police headquarters she was carried through a room \u201cwhere there were a lot of men sitting at a desk.\u201d There were face masks on the wall. Pistols were in evidence. There was a machine gun \u201cin a glass cage, and there were clubs and straps, and a lot of pictures. \u2019 \u2019\nAppellant contended she was made to sit in front of a table \u2014 \u201cthen they got wooden clubs and straps and a rubber [hose] and laid them on the table.\u201d The machine gun was also procured and placed on the table before appellant. \u2018 \u2018 Then a man with a strap across his shoulder got a leather thing and put it around my neck till I could hardly breathe. They caught me by the hair and beat me in the face until I felt like fire on the inside of my face. Then he stood me up till he gave out, and I said, \u2018no, I will tell the truth.\u2019 Then he pushed me to Mr. Charles and he turned the chair down and beat me till he had the strap torn all to pieces.\u201d\nAppellant insisted she was threatened with the machine gun, and kept at state police headquarters \u201cuntil almost day,\u201d and \u201cI had to say something to keep from dying. They had carried me 'back to North Little Rock and hit me two or three times. This man [pointing to one of the officers whose name does not appear in the record] asked me if I would sign a piece of paper or something. I signed it Saturday morning in the North Little Rock police station.\u201d\nIn describing further the circumstances attending the transaction, appellant said: \u201cI was sitting in the room by myself and he came back. I said, \u2018Don\u2019t beat me, don\u2019t beat me and make me say I did it; please don\u2019t.\u2019 He said, \u2018You are going to say you did it,\u2019 and I said it and signed the paper.\u201d\nOfficer John Charles denied appellant was coerced or mistreated. The accused, he said, volunteered the information that she had killed Davis, and that the iron used by her was concealed near a rain barrel under the Missouri Pacific bridge. After taking appellant to state police headquarters the officers were back in North Little Rock by ten o\u2019clock, and witness (Charles) was in bed by eleven. \u201cWe didn\u2019t stay at state police headquarters more than twenty minutes.\u201d\nIn response to a question by the court, Deputy Prosecuting Attorney 'Bogard said: \u201cYour Honor, when this girl made her statement she more or less made it to her own brother. . . . I told her brother this:\u2018It will be better for you \u2014 she has implicated you \u2014 because even if you didn\u2019t have anything to do with the killing, the money was traced to you\u2019.\u201d\nBogard testified that after the verbal confession was made he took two stenographers for the purpose of having it repeated and transcribed. At trial one of the stenographers, who had transcribed part of appellant\u2019s statement, was ill. The court ruled that the written statement was inadmissible because of the stenographer\u2019s absence, but permitted Deputy Bogard to examine appellant in respect of the so-called confession. The court also held that a purported confession made at the county jail was admissible. Appellant admitted she was not mistreated while in jail.\nWhen trial was resumed in the presence of the jury, Officer Anderson testified that appellant\u2019s confession was substantially as follows:\nShe was passing the Oritz lot about 11:30. Davis, seated in a chair in front of the main building, engaged her in conversation. They immediately went to the used car lot, where appellant got possession of Davis\u2019 billfold and made an effort to get away. Her escape was prevented by a wire fence at the back of the lot. Davis, in the meantime, had discovered his loss and began calling to her. Seeing she could not get away in the manner intended, she returned to Davis. Davis fired two shots at her. Half way between the rear of the lot (wire fence) and Davis she passed a pick-up truck. Prom it she procured a tire tool. When Davis grabbed her and undertook to recover the money, she struck him two or three times with the iron. The tire tool was found near the Critz work shop. [It contained blood stains.] Appellant, finding that her dress was bloody, tore off part of it.\nAppellant testified that she and Davis had been \u201cgoing together\u201d for eight or nine years. She had frequent \u201cdates\u201d with him. The morning of September 4 Davis came to her home \u2014 \u201cWe were sitting there laughing and talking and kissing, and he said, \u2018 Do you want anything ? \u2019 and I said, \u2018Yes, I want some groceries and clothes for winter, and I have to pay the rent.\u2019 He said, \u2018Come to the office at 10:30 or 11:00 o\u2019clock tonight,\u2019 and I said, \u2018All right\u2019.\u201d\nAbout half past ten o\u2019clock she went to the car lot. Davis was sitting on the corner in a chair. \u201cHe caught hold of my hand and we walked across the street to the lot. He turned loose and \u00cd walked into the house and to the cot and laid my head back. . . . We played around for the longest time.....Pie gave me some money\u2014 took it from his billfold without counting it. I had the money (it was folded) in my hand. ... In about thirty minutes a low, chunky man with bushy hair entered. I was lying on the'cot and didn\u2019t see the man until he spoke. I was lying flat on my back and Mr. Davis was across me with his head on my shoulder. The man said, \u2018This is what I have been suspicioning for a long time.\u2019 He said, \u2018When I get through with you, you will all make a pretty coffin for the police and public to find.\u2019 Mr. Davis jumped up and said, \u2018You will never remember telling the police or anybody else what you have seen or heard. \u2019 . . . Mr. Davis raised his pistol and this man hit him and knocked him back on me. They fought near the door. Mr. Davis said, \u2018I don\u2019t want the police or anybody else to know or come here and see you.\u2019 As I was going for the door trying to get by this man I got hit on the shoulder, and left after I got free. When I got under the light I saw there was blood on my dress, and I went to my brother\u2019s house. \u2019 \u2019\nOther Facts \u2014 and Opinion\nThe court did not err in permitting appellant to be cross-examined in respect of the purported confessions; nor was there error in the manner statements were presented, or in the instructions relating thereto.\nInstruction No. 18, in part, is: \u201cThere has been some testimony regarding a confession, and evidence presented to the court and jury on that question. Before you can consider any confession as evidence you must find (a) that the defendant did make a confession, (bj that the confession she made was the one you heard from the witness stand, (c) that the defendant told the truth, and (d) that the confession was voluntarily made.\u201d [See Thomas v. State, 125 Ark. 267, 188 S. W. 805; Dewein v. State, 114 Ark. 472, 170 S. W. 582; Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852; Morris v. State, 197 Ark. 695, 123 S. W. 2d 513.]\nThe jury returned a verdict of murder in the first degree and the court adjudged that the defendant should suffer death by electrocution.\nCounsel do not seriously contend that Davis was not killed by appellant. In the brief it is said: \u201cThe murder was committed (if committed by this appellant) after the commission of larceny, and in her attempt to escape from the lot.\u201d Rayburn v. State, 69 Ark. 177, 63 S. W. 356, is cited as being in point. In an opinion handed down March 25,1901, a majority of the court held it to be unnecessary to charge specifically in the indictment that the murder was committed in an attempt to perpetrate robbery. Chief Justice Bunn dissented. On rehearing, June 1, 1901, the judgment was reversed because the court gave an instruction that the defendant was guilty of murder in the first degree if the jury found from the evidence beyond a reasonable doubt that the decedent was killed by the defendant while the latter was attempting to perpetrate a robbery. The indictment did not allege an attempt to rob.\nThe case is not applicable here because the information charged that Mary Dinwiddie killed S. B. Davis \u201cunlawfully, feloniously and -willfully, and with malice aforethought, and after deliberation and premeditation, and with a felonious intent then and there to' rob. \u2019 \u2019\nWhile there is no direct evidence, aside from the confession, that Davis was robbed (appellant having contended the money traced to her was a gift from Davis), we think her failure to report the alleged assault by the unknown man, lier flight, and the circumstances attending disposition of the money, were sufficient to go to the jury..\nThere was testimony, not set out in this opinion, that Davis\u2019 relations with appellant were founded upon physical lust, and that sex propensities prompted the invitation that appellant meet him late at night where obscurity and convenience would contribute to the consummation of desire.\nIt is our opinion that the evidence does not show that appellant went to the Critz place for the purpose of committing robbery or murder, or that premeditation and malice actuated the crime. That she did kill Davis seems certain, but if, as the undisputed evidence shows, the meeting was planned for the purpose-of engaging in immoral physical conduct, and the robbery and homicide were incidental and without premeditation, the verdict of first degree murder is not sustained.\nThe judgment, therefore, will be modified by substituting 21 years of penal servitude; and, as modified, it is affirmed.\nMcClain did not, at the time of the transaction, know who the woman was. She was dressed in white. At trial he identified her as Mary Dinwiddie.\n\u2019 ~ nurse was elsewhere referred to as a billfold.\nDavis has been divorced by his wife four or five years.", "type": "majority", "author": "Grieein Smith, C. J." } ], "attorneys": [ "Joseph Brooks and Jno. A. Kibbler, for appellant.", "Jack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee." ], "corrections": "", "head_matter": "Dinwiddie v. State.\n4202\n151 S. W. 2d 93\nOpinion delivered May 26, 1941.\nJoseph Brooks and Jno. A. Kibbler, for appellant.\nJack Holt, Attorney General, and Jno. P. Streepey, Assistant Attorney General, for appellee." }, "file_name": "0562-01", "first_page_order": 580, "last_page_order": 589 }